IKASUREROOM 


COL.  GEORGE  WASHINGTON  FLOWERS 
MEMORIAL  COLLF.CTION 


DUKE  UNIVERSITY  LIBRARY 
DURHAM.  N.  C 


PRESENTFD  BY 

W.  W   FLOWHRS 


CK^* 


REPORT     ' 

Of  Committee  appointed  to  inquire  how  much  of  the  legishfion  of 
Congress  is  abrogated  hg  the  secession  of  tJic  State. 

The  Committee  to  whom  wn«i  assigned  the  duty  of  in- 
quiring how  much  of  the  logish\tion  of  Congress  is*  ipso 
facto  a^jrogated,  so  far  as  this  State  is  concerned,  hy  the 
secession  of  the  State  from  the  Federal  Union,  and  how 
much  of  it  may  remain  of  force  notwjtlistanding  the  act  of 
secession,  have  given  some  consideration  to  tl)e  sn1>ject, 
and  respectfully  ask  leave  to  suhmit  the  following  Report: 

A  thorough  examination,  in  detail,  of  all  the  A  jts  of 
Congress  in  force  at  the  time  when  the  State  seceded  from 
the  Confederacy,  would  have  required  much  more  time  aud 
labor  than  the  Committee  were  able  to  command,  nor  did 
it  appear  to  them  that  any  such  minute  investigation  wha 
necessary  to  the  proper  performance  of  the  duty  with 
which  they  were  charged. 

Every  law  of  the  United  States  must  have  been  enacted 
in  pursuance  and  by  virtue  of  some  one  or  more  of  the 
powers  of  Congress  expressly  enumerated  in  the  Constitu- 
tion, oMiecessarily  implied  in  some  Constitutional  obliga- 
tion imposed  on  the  Government,  which  it  would  be  unable 
to  discharge  without  the  possession  of  such  power.  Tfte 
nature  and  object  of  all  the  laws  passed  by  the  Federal 
Legislature  must  correspond  essentially  with  the  char.ict^r 
and  design  of  the  powof^  which  they  were  intended  to 
carry  into  effect.      '  1  consideration  of  the  several 

powers  vested  by  tl  tutiou  in  the  Congress  of  the 

United  States   may  re,   enable  us   to  educe  some 

general  principles  which  vill  serve  to  determine,  by  refer- 
ence to  the  power  in  pursuance  of  which  any  particular  law 


was  enacted,  wlietlier  it^  obli<ratorv  effect  upon  the  people 
of  Soutli  Carolina  was  annulled  hv  the  withdrawal  of  the 
State  from  the  ConlVdi  racy,  or  survives  that  event. 

Taking:  them  in  the  order  of  their  enumeration,  the  first 
which  presents  itsclt  is  the  power  "to  lay  and  collect  taxes, 
duties,  inipctsts  and  ix<iscs.  to  pay  the  dchts  and  provide 
-  for  the  common  defence  and  general  welfare  of  the  United 
Slates."  The  object  of  this  power  was  to  enahle  the  Fed- 
eral Government  to  draw  from  the  jieoide  of  the  .several 
States  the  pecuniary  meand  necessary  for  paying  the  debts 
of  the  United  States  and  defraying  the  expenses  incident 
to  the  execution  of  its  various  function.s.  While  South 
Carolina  was  a  member  of  the  Confederacy,  assenting  to 
the  compact  of  union  as  a  part  of  the  fundamental  law  of 
the  State,  the  people  of  the  State  were  bound  by  all  laws 
of  the  United  States,  laying  duties  or  other  imjtosts  con- 
stitutionally passed  and  actually  in  force.  The  obligation 
to  which  they  were  subject  was  to  contribute  towards  the 
sujiptM't  of  the  Federal  Ciovernmeiit  to  the  exti-nt  and  in 
the  manner  prescribed  by  .such  laws.  Their  obligation  to 
}»av  was  co-existent  and  conelative  with  the  authority  of 
the  Ciovernment  to  exact  and  collect  the  duties  or  other 
imiiosts.  ]iut  when  the  State  withdrew  from  the  Union 
and  retracted  its  assent  to  the  Constitution,  the  authority 
of  the  Federal  Government  to  collect  <luties  and  other  im- 
posts from  her  people  or  within  her  limits,  was  revoked, 
and  with  the  authority  to  collect,  the  obligation  to  pay 
them  was  at  once  extinguished.  In  other  words,  all  such 
laws  were  essentially  abrogated  by  the  act  of  secession. 
The  laws  regulating  the  collection  and  i)ayment  of  duties, 
being  merely  ancillary  to  those  by  which  the  duties  were 
imjtosed  antl  depentling  entirely  for  their  vitality  upon  the 
obligation  to  ]»ay,  and  the  authority  to  collect  su«li  duties, 
must  also  be  annulled^  by  the  extinction  of  the  i»<»wer  of 
the  Federal  (Joverniii''iit  ..\-.'i-  jb<'  iniii,!.-  .-umI  icrritory  c^f 
the  State. 

Next  in  order  is  the  power  "to  biuiow   money  on   the 
credit  of  tlic  United  States."      Acts  of  Congress  passed  in 


pursuanoo  of  this  power,  are  warrants  of  autliority  and 
histriKtions  to  certain  functionaries  of  the  Federal  Govern- 
Tiient  to  horrow  money  for  tlie  use  of  the  United  States, 
and  to  issue  in  their  name  securities  for  sucli  loans,  pledg- 
ing: the  faith  of  the  Confederacy  for  the  payment  of  the 
stiimlatcd  interest  and  the  ultimate  repayment  of  the  prin- 
cipal. The  obligations  incurred  by  such  law,  and  the 
loans  eftected  under  them,  engage  only  the  public  faith  of 
the  Confederated  States.  They  arc  not,  properly  speaking, 
legal  obligations,  for  the  parties  l)0und  by  them  being  Sov- 
ereign States,  they  cannot  be  enforced  by  any  legal  process. 
The  security  of  the  creditors  rests  entirely  upon  the  good 
faith  of  the  States,  but  a  State  certainly  cannot,  by  with- 
drawing from  the  Confederacy,  absolve  itself  from  high 
moral  and  political  obligations  which  it  liad  contracted,  in 
common  with  the  other  States,  while  they  were  united. 

AVe  come  now  to  the  power  "to  regulate  commerce  with 
foreign  nations,  and  among  the  several  States,  and  with  the 
Indian  tribes.' 

During  the  existence  of  the  Federal  Union,  the  Congress 
of  the  Tnitcd  States  was  the  legislative  cu-gau  of  this  State 
for  the  regulation  of  its  external  commerce.  Commerce 
consists  of  transactions  between  individuals  concerning 
private  rights  and  interests ;  and  in  the  exercise  of  its 
power  to  regulate  the  commerce  of  the  people  of  this  State 
with  those  of  other  Nations  and  States,  Congress  might 
have  enacted  laws  affecting  the  mutual  rights  and  oldiga- 
tions  of  indivi<luals  in  their  private  relations  with  eacli 
otiier.  If  any  such  laws  had  been  passed,  it  does  not  aj^- 
pear  to  the  Committee  tliat  they  would  lose  their  obliga- 
tory force  in  consequence  of  the  withdrawal  of  the  State 
from  the  Union.  Being  expressions  of  the  public  will  of 
the  State,  promulgated  1)V  an  agent,  duly  appointed  for 
tliat  purpof^c,  the  subserpient  revocation  of  the  authority  of 
the  agent  would  not,  of  itself,  operate  to  rescind  them. 
The  public  will  of  the  State,  expressed  in  the  form  of  law, 
may  remain  unchanged,  notwithstanding  the  deposition  of 
the  special  organ,  through  whom  it  was  announced      Bnt 


P58558 


the  laws  made  in  pursuance  of  the  power  to  reprulatc  com- 
iiicTc-c.  are  not,  so  fur  as  tlie  researches  of  tlie  Committee 
have  discovered,  of  tlie  character  just  suggested.  They 
emhrace  a  great  multitude  and  variety  of  provisions,  desig- 
uatini;  what  places  shall  be  ports  of  entry  and  delivery; 
J  prescrihing  in  what  vessels  goods  may  be  imported,  how 
vessels  shall  be  entered  and  cleared,  what  vessels  shall  be 
admitted  to  registry  as  vessels  of  the  United  States,  and  the 
terms  and  conditions  on  which  they  shall  be  so  admitted; 
wliat  vessels  may  be  employed  in  the  coasting  trade,  and 
many  other  particulars  of  the  like  nature. 

The  due  observance  of  all  these  regulations  is  provided 
for  by  means  of  tines,  penalties  and  forlV-itures,  which,  upon 
their  violation,  are  to  accrue  to  the  United  States,  and  for 
the  enforcement  of  which  exclusive  jurisdiction  is  given  to 
the  l)istrict  Courts  of  the  United  States.  Our  secession 
from  the  Union,  has  swept  away  both  the  right  of  the  Uni- 
ted States  to  exact  these  penalties  and  forfeitures  from  the 
peojile  of  this  State,  and  the  only  tribunals  by  which  they 
touhl  have  been  enforced,  and  if  the  laws  themselves  can 
now  be  regarded  as  in  any  sense  remaining  unrepealed,  they 
are  certainly  deprived  <»f  the  sanctions,  without  which  they 
arc  destitute  of  any  practical  cfKcacy. 

The  power  "to  establish  an  uniform  rule  of  naturaliza- 
tion, and  uniform  laws  on  the  subject  of  bankruptcies 
throughout  the  United  States,"  follows  next  in  order.  Be- 
fore the  Constitution  of  the  United  States  was  established, 
the  naturalization  of  aliens  was  under  the  exclusive  control 
of  the  several  States.  Each  State  treated  the  subject  in  its 
own  way.  In  this  State  there  was  no  general  law  making 
provision  for  the  naturalization  of  aliens.  They  were  occa- 
Kionally  naturalized,  but  it  was  always  done  by  a  special 
Act  of  the  Legislature.  The  Congress  of  the  United  States 
were  empowered  by  the  Constitution  "  to  establish  an  uni- 
form rule  of  naturalization.  There  is  nothing  in  this  lan- 
guage which  can  be  properly  understood  to  mean  that  the 
naturalization  of  aliens  was  to  be  taken  out  of  the  hands 
of  the  several  States.     On   the  contrary,  the  words  seem 


rather  to  imply  that  aliens  were  to  be  naturalized  by  the 
several  States  according  to  a  "  uniform  rule,"  to  be  estab- 
lished by  Congress.  If  citizenship  was  to  be  conferred  by 
many  States,  each  acting  for  itself  independently  of  the 
others,  it  was  manifestly  proper  tliat  there  should  be  a  uni- 
form rule  of  naturalization  established  by  an  authority 
common  to  them  all,  but  it  could  scarcely  have  been  neces- 
sary to  provide  for  a  uniform  mode  of  doing  what  was  to 
be  done  by  the  Federal  Government  alone.  The  unity  of 
the  agent  would  have  been  suiBcient  to  secure  uniformity 
in  the  mode  of  action.  The  purpose  of  the  Constitution 
appears  to  have  been  that  Congress  should  prescribe  a  rule, 
by  which  each  State  of  the  Confederacy  should  be  gov- 
erned in  admitting  aliens  to  become  its  citizens.  And  it 
was  just  and  reasonable  that  the  rule  of  naturalization 
should  be  uniform,  because  by  another  provision  of  the 
Constitution,  the  citizens  of  each  State  were  to  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the  several 
States.  But  Congress,  in  legislating  under  this  power, 
seems  from  the  first  to  have  understood  it  in  a  diftcreut 
sense.  Instead  of  establishing  a  uniform  rule  bv  which 
aliens  might  be  made  citizens  of  the  several  States,  they 
have  pres(;ribed  a  mode  in  which  aliens  might  become  citi- 
zens  of  the  United  States.  The  earliest  Act  on  the  subject 
was  [»assed  in  March,  1790.  It  provides  "  that  any  alien 
being  a  free  white  person,  who  shall  have  resided  within 
the  limits  and  under  the  jurisdiction  of  the  United  States 
for  the  terni  of  two  years,  may  be  admitted  to  become  a 
citizen  thereof,  on  application  to  any  common  law  Court  of 
record,  in  any  one  of  the  States  wherein  he  shall  have 
resided  for  the  tenn  of  one  year  at  least,  and  making  proof 
to  the  satisfaction  of  such  Court  that  he  is  a  jterson  of 
good  character,  and  taking  the  oath  or  affirmation  pre- 
scribed by  law,  to  sujiport  the  Conetifution  of  the  United 
States,  which  oath  or  affirmation  such  Court  shall  adminis- 
ter; and  the  Clerk  of  such  Court  shall  reconl  such  ai»iilica- 
tion,  and  the  proceedings  thereon,  and  thereupon  such 
person  shall  be  considered  as  a  citizen  of  the  Uniicd  Stales.'' 


P58558 


6 

This  Act,  and  all  t»tlicr  Acts  on  the  same  suhjoot,  passed 
prior  to  the  14th  of  April,  1802,  iiave  been  repealed,  and 
as  the  law  stood  at  the  time  of  our  secession,  it  may  be 
stated  with  sufficient  fiihiess  and  accuracy  for  the  jtresent 
purpose,  as  follows:  "Any  alien  being  a  free  white  pei*son, 
may  be  admitted  to  bcrome  a  citizen  of  the  United  States, 
or  any  ol"  them,"  on  certain  conditions,  which  are  dift'erent 
in  dift'erent  cases.  In  some  cases,  it  is  necessary  that  the 
applicant  shall  have  declared  on  <>ath  or  aiHrmati(»n,  before 
the  Supreme,  Superior,  District  or  Circuit  Court  of  some  one 
of  the  States,  or  of  the  territorial  districts  of  the  United 
States,  or  a  Circuit  or  District  Court  of  the  United  States, 
two  years  at  least  before  his  admission,  that  it  was  hona  fide 
fiis  intention  to  become  a  citizen  of  the  Ignited  States,  and 
to  renounce  forever  all  allci;iance  and  fidelity  to  any  foreign 
prince,  potentate,  State  or  sovereignty  whatever,  and  j)arti- 
cularly  by  name,  the  prince,  potentate.  State  or  sovereignty 
whereof  such  alien  may  at  the  time  be  a  citi/en  (»r  subject. 
In  some  cases  this  condition  is  disjienscd  with,  but  in 
all  it  is  required  that  the  applicant  shall  declare  on  oath  or 
affirmation,  that  he  will  suj)port  the  Constitution  of  the 
United  States,  and  that  he  abjures  all  allegiance  to  every 
foreign  sovereignty  whate\er.  It  is  not  easy  to  understand 
what  is  meant  by  a  citizen  of  the  United  States^  uidess  it  be  a 
citizen  of  one  of  the  States.  Taken  in  its  most  literal 
sense,  it  would  seem  to  mean  a  citizen  of  all  the  States; 
but  this  no  man  can  well  be.  A  citizen  of  Massachusetts 
certainly  is  not  a  citizen  of  New  York;  niucli  less  of  all 
the  other  States;  yet  Congress  must  be  supposed  to  have 
regarded  a  native  citizen  t)f  Massachusetts  (piite  as  much  a 
citizen  of  the  United  States  as  an  alicM  nalui-ali/ed  in  that 
State,  aJid  surely  could  n(»t  have  intended  to  put  the  natu- 
ralized alien  ujion  a  dill'erent  footing  from  that  of  the 
native  citizen.  It  is,  therefore,  reasonable  to  presume  that 
when  they  speak  of  an  alien  being  "admitted  to  become  a 
citizen  of  the  United  States,  or  any  of  them,"  they  really 
mean  nothing  more  or  less  than  being  admitted  to  become 
a  citizen  of  one  of  the  States.     Understood  in  this  aeusej 


if  tliore  wns  nothiiiij:  in  the  law  itself  iiu-onsistent  with  the 
present  ]K).siti(>n  of  the  State,  there  would  be  no  reason  why 
it  should  not  continue  to  be  the  rule  of  naturalization,  not- 
withstanding the  secession  of  the  State  from  the  Union  ; 
but  it  is  impossible  to  resist  the  conclusion,  that  when  the 
Convention  set  aside  the  Constitution  of  the  United  States, 
and  withdrew  the  State  from  the  Union  with  the  other 
States,  they  did  by  that  act  abrogate  a  law  which  makes  it 
one  of  the  necessary  conditions  on  which  an  alien  shall  be 
naturalized  as  a  citizen  of  the  State,  that  he  shall  declare 
on  oath  that  he  will  support  the  Constitution  of  the  United 
States,  which  is  the  Constitution  of  a  government  foreign 
to  the  State,  and  which  no  citizen  could  support  consist- 
ently with  his  allegiance  and  fidelity  to  the  State. 

There  are  now  no  subsisting  Acts  of  Congress  passed  in 
pursuance  of  the  power  "to  establish  uniform  laws  on  the 
subject  of  bankruptcies  throughout  the  United  States." 
Such  laws  have  been  enacted  on  several  occasions,  but  they 
were  speedily  repealed. 

Next  in  order  is  the  power  "to  coin  money;  regulate  the 
value  thereof,  and  of  foreign  coin;  and  fix  the  standard  of 
weights  and  measures." 

During  the  existence  of  the  Union,  the  Congress  of  the 
United  States  was  authorized  to  coin  money  for  the  people 
of  all  and  each  of  the  States,  and  to  regulate  the  value  of 
the  money  so  coined,  and  also  that  of  foreign  coins.  The 
money  coined  in  pursuance  of  that  authority,  while  it  was 
held  with  the  assent  of  South  Carolina,  as  well  as  the  other 
States,  is  still  the  legal  money  of  the  State,  and  the  values 
fixed  upon  such  coin,  and  also  upon  foreign  coins,  by 
the  laws  of  the  United  States,  as  they  were  at  the  time  of 
our  secession,  continue  to  be  the  legal  values  at  which  they 
are  to  bo  paid  and  received  in  transactions  between  individ- 
uals. There  is  certainly  no  reason  in  the  nature  of  such 
acts  and  regulations,  why  they  should  expire  witli  the 
auth<»rity  of  the  inrcni  by  whom  they  were  done  or  jiromul- 
gated. 

The  legislation  of  Congress  on  tlie  subject  of  weightJj 


8 

and  measures,  is  contined  to  a  provision  in  one  of  tlie  rev- 
enue Acts  (k'lining  the  weiglit  to  be  understood  by  the  word 
"ton,"  as  employed  in  that  Act,  and  the  estubliyhment  of  a 
standard  of  weights,  to  l)e  used  at  the  mint  for  the  regula- 
tion of  the  coinage.  As  both  the  customs  and  mint  of  the 
United  States  are  now  foreign  to  this  State,  those  regula- 
tions can  have  no  force  here. 

Next  follows  the  power  "to  provide  for  the  puiiishuiciit 
of  counterfeiting  the  fcccurities  and  current  coin  of  the 
United  States." 

Exclusive  jurisdiction  of  offences  against  all  the  Acts  of 
Congress  passed  in  pursuance  of  this  power,  is  vested  in 
the  Courts  of  the  United  States ;  and  as  there  are  now  no 
such  Courts  in  thjs  State,  nor  can  be  any,  the  laws  them- 
selves are  in  elFect  practically  abrogated,  liut  there  is  no 
doubt  that  to  counterfeit  the  securities  or  current  coin  of 
the  United  States  within  this  State,  is  an  offence  against 
the  State,  jiunishable  by  the  common  law. 

Thi  Vvinr  to  Establish  ]'ost-Oi]kcs  and  Post-Boat L^—Tha 
Post-office  establishment  of  the  United  States  is  one  of  the 
departments  of  the  Government,  and  the  purjiosc  of  all  the 
laws  }iassed  in  pursuanee  of  this  power,  is  to  organize  the 
department,  to  direct  its  ojierations,  and  to  protect  it  in  the 
exercise  of  its  functions.  With  the  authority  of  the  Gov- 
ernment, that  of  the  rost-oilice  de})artment,  and  all  the 
legislation  on  which  it  dcjicnded  for  its  existence  and  oi)er- 
ations,  were  terminated  in  South  Carolina  by  the  with- 
drawal of  the  State  from  the  Union. 

7'A(  J^utvcr  '■'to  Protnoti  the  Prutjrcss  of  Science  and  Useful 
Art.^,  by  sccurin<)  for  liinitid  tiincs,  to  authors  and  inventors,  the 
exclusive  right  to  ihdr  nsjuitirt  irriti/if/s  and  disroveries." — The 
laws  of  the  United  States  (Hnicerning  coijyright,  provide 
that  no  person  shall  be  entitled  to  their  benefit,  unless  he 
shall,  before  publication,  deposit  a  printed  copy  of  the  title 
of  the  book  or  other  work,  the  exclusive  right  to  which  is 
sought  to  be  secured,  in  the  office  of  the  District  Court  of 
the  district  wherein  the  author  or  pro}»rietor  resides.  A 
copyright  can  therefore  be  obtained  only  by  a  person  resid- 


ing  in  some  district  of  the  United  States,  so  that  the  law 
is  practically  abrogated  in  this  State.  The  granting  of  pat- 
ents for  new  and  useful  discoveries,  inventions  and  improve- 
ments, is  assigned  to  the  Commissioner  of  Patents,  whose 
office  is  attached  to  the  Department  of  the  Interior,  and 
being  a  part  of  the  machinery  of  the  Government  of  the 
United  States,  certainly  can  have  no  longer  any  authority 
to  grant  patents  for  this  State. 

As  to  patents  and  copyrights  issued  during  the  existence 
of  the  Union,  they  were  granted  by  the  authority  of  South 
Carolina  as  well  as  the  other  States,  and  therefore  the  par- 
ties entitled  to  their  benefit  have  the  same  exclusive  right 
in  this  State  to  their  writings  or  discoveries  that  they  had 
before  the  Union  was  dissolved.  The  Acts  of  Congress 
give  original  cognizance  of  suits,  controversies  and  cases 
arising  under  the  laws  relative  to  patents  and  copyrights  to 
the  Circuit  Courts  of  the  United  States,  but  this  jurisdiction 
is  not  expressly  made  exclusive,  and  there  seems  to  be  no 
reason  in  the  nature  of  things  why  it  sliould  be  so.  Any 
violation  of  a  patent  or  copyright  having  validity  and  eftect 
in  this  State,  would  be  an  injury  to  property  for  which  the 
party  aggrieved  might  obtain  adequate  redress  in  the 
Courts  of  the  State. 

The  Courts  of  the  United  States  established  in  this  State 
in  pursuance  of  the  power  "to  constitute  tribunals  inferior 
to  the  Supreme  Court,"  with  all  the  laws  by  which  they 
were  constituted  and  regulated,  were  of  course  set  aside  by 
the  with<h-awal  of  the  State  from  the  Union,  whicli  at  once 
deposed  the  authority  of  the  li'ederal  Government  over  the 
people  and  territory  of  the  State  in  all  its  departments,  and 
in  every  form. 

'*  To  (kjiiic  and  punish  Piracies  and  Fdonics  committal  on  the 
Jiigh  scaSy  and  offences  o gainst  the  law  of  Nations.'' — Exclusive 
cognizance  of  offences  against  all  the  Acts  of  CVtngress 
purjtorting  to  define  and  provide  punishments  for  piracies 
and  felonies  committed  on  the  high  seas,  is  given  to  the 
Courts  of  the  United  States,  and  therefore  the  Acts  them- 
selves can  have  no  practical  efficacy  in  this  State.     Except 


10 

80  far  as  piracies  and  felonies,  and  other  offences  committed 
on  tlic  ]ug\\  seas  may  ho  deemed  offences  against  the  law 
of  nations,  there  are  no  Act^  of  Congress  professing  in 
terms  to  define  and  punish  offences  against  the  law  of 
nations.  Some  of  the  acts  define  and  prescrihe  the  punish- 
ment of  ofl^ences,  which  are  neither  jtiracies  nor  felonies, 
nor  ofl'cnces  against  the  law  of  nations,  and  therefore  can- 
not be  referred  to  this  ]>owcr.  The  authority  for  these 
enactments  must  be  found  in  some  other  part  of  the  Con- 
stitution ;  either  in  the  power  to  "regulate  commerce,"  or 
perhajts  in  the  provision  which  extends  the  judicial  power 
"to  all  cases  of  admiralty  and  maritime  junsdictitm," 
regarding  them  as  laws  necessary  and  proper  for  carrying 
that  power  into  execution.  Such  offences  are  only  cog- 
nizable by  the  Courts  of  the  United  States,  and  therefore 
stand  upon  the  same  legal  footing  in  this  State  as  those 
which  have  been  before  considered, 

"To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water." 

The  only  sul)sisting  enactments  on  either  of  the  subjects 
of  this  power,  are  certain  provisions  of  the  laws  for  the 
regulation  of  the  Xavy,  prescribing  in  what  cases  caijtures 
made  by  armed  vessels  of  the  Ignited  States  .shall  belong 
wholly  to  the  captors,  or  be  divided  between  them  and  the 
United  States,  and  the  projiortions  in  which  prize  money 
shall  be  distributed  among  the  ofhcers  and  crews  of  the 
vessels  making  the  cajitures;  and  one  of  the  articles  for  the 
government  of  the  Army,  which  directs,  that  public  stores 
taken  from  an  enemy,  shall  be  secured  for  the  service 
of  the  United  States,  As  these  relate  exclusivi'ly  to  estab- 
lishments now  foreign  to  this  State,  thiy  can  have  no 
validity  here. 

In  the  same  manner,  wc  may  dispose  of  all  the  laws 
passed  in  jmrsuance  of  the  sevei'ai  jiowers:  "To  i-aise 
and  support  armies,"  "  To  provide  and  maintain  a  navy," 
and  "  To  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces," 

The  Acts  of  Congress,  passed  by  virtue  of  the  power, 


11 

"to  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  tlie  Union,  sup[»res8  insurrections,  and  repel  inva- 
sion," are  laws  made  for  the  purpose  of  regulating  the 
manner  in  which  that  power  should  he  exercised,  and  must, 
therefore,  have  expired  with  the  power  itself,  so  far  as  this 
State  is  concerned,  npon  the  secession  of  the  State  from 
the  Union. 

The  power  "  to  provide  for  organizing,  arming  and  dis- 
ciplining the  militia,  and  for  governing  such  part  of  them 
as  may  be  employed  in  the  service  of  the  United  States," 
embraces  two  distinct  objects,  as  to  which,  the  legislation 
of  Congress  may  be  differently  affected,  by  the  withdrawal 
of  the  State  from  the  Union,  All  laws  for  governing  such 
part  of  the  militia  of  the  State  as  ma}'  be  employed  in  the 
service  of  the  United  States,  must  necessarily  l)e  abrogated, 
because  such  laws  assume  and  imply  the  authorit}'  of  the 
United  States  to  call  into  their  service  and  govern  the  mili- 
tia of  the  State,  and  that  authority  has  been  revoked.  But 
laws  passed  l)y  the  Congress  of  the  United  States,  for 
organizing  and  disciplining  the  militia  of  the  State,  while 
they  were  the  constituted  organ  of  the  State  to  legislate  for 
that  purpose,  may  continue  to  be  of  force,  though  the 
authority  of  the  legislative  agent  has  been  annulled,  if  there 
is  nothing  in  them  inconsistent  with  the  -changed  position 
of  the  State. 

AVe  come  now  to  the  power  "  to  exercise  exclusive  legis- 
lation in  all  cases  whatsoever,  over  such  district  (not  exceed- 
ing ten  miles  square)  as  may,  by  cession  of  particular 
States,  and  the  acceptance  of  Congress,  become  the  seat  of 
the  Government  of  the  United  States  ;  and  to  exercise  like 
authority  over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  tlic  same  shall  be,  for  the 
erection  of  forts,  mairazincs.  arsenals.  <h><k-yards.  and  other 
needful  buildings." 

It  is  needless  to  consider  the  legislalion  of  Congress  con- 
cerning the  District  of  Columbia,  because,  being  necessarily 
local,  and  relating  to  a  small  territory  ceded  by  another  State, 


and  wholly  foreign  to  this  State,  it  never  had.  uov  could 
have  any  effect  here. 

But  there  is  the  power  "  to  exercise  like  aut]i()nty,  (that 
is  exclusive  legislation  in  all  cases  whatsoever,)  over  all 
places  purchased  hy  the  consent  of  the  legislature  of  the 
State  in  which  the  same  shall  he,  for  the  erection  of  forts, 
magazines,  &c." 

It  docs  not  appear  that  this  power  has  ever  hcen  exercised; 
at  least  there  are  no  suhsisting  Acts  of  Congress  on  the  sub- 
ject. The  question  then  reveiia  to  the  power  itself  Does 
it  sun'ive  the  dissolution  of  the  Union  in  a  State  which  has 
seceded?  The  power  to  exercise  exclusive  legislation  over 
any  particular  part  of  the  territory,  of  either  of  the  States, 
is  derived  from  and  dependent  upon  the  consent  of  the 
State.  It  could  not  he  derived  from  any  other  State  or 
States,  because  it  never  was  theirs,  and  they  had  no  right 
or  power  to  grant  it.  ll  is  one  of  the  political  powers  of 
Congress,  delegated  bj-  the  Constitution,  operating  as  tlio 
act  of  the  State  ;  it  rests  upon  the  same  foumlatiou  with 
the  other  powers,  and  has  the  same  claim  to  per[»etuity, 
and  no  more.  If  they  may  l)e  revoked,  so  may  this  ;  and 
if  this  is  irrevocable,  so  arc  the  otliers.  The  whole  ground 
upon  which  the  right  of  a  State  to  secede  from  the  Union 
is  asserted,  must  be  utterly  abandoned,  or  the  political 
power  of  the  Federal  Govei-ment  over  the  forts  and  other 
military  establishments  in  the  State  is  extinguished,  by  the 
act  of  secession,  as  well  as  the  other  powers. 

It  is  reduced  then,  to  a  (juestion,  not  of  political  j)ower, 
but  merely  of  property.  The  forts  and  other  military 
.establishments  in  the  State,  are  said  to  be  the  property  of 
the  Federal  Government,  and  they  maintain  their  right,  as 
proprietors,  to  hold  possession  of  them,  without  or  against 
the  consent  of  the  State.  According  to  the  theory  of  our 
Federative  system,  which  we  have  long  maintained,  and 
wdiich  best  comports  with  reason  and  the  history  of  the 
system  itself,  the  authority  of  the  Federal  (iovernment  in 
each  of  the  States  is  founded  entirely  upon  the  consent  of 
the  people  of  that   State  alone,  and  depends  upon  their 


consent  not  only  for  its  original  cstabli.'^limcnt,  but  for  itr=i 
continued  existence.  It  is,  in  fact,  a  government  of  the 
State  for  certain  specific  purposes,  being  also,  at  the  same 
time,  a  government  of  the  other  States  for  the  same  pur- 
poses, and  in  each  State  it  is  subordinate  to  the  power 
ironi  which  it  derives  and  holds  its  authority,  that  of  the 
people  of  the  State,  just  in  the  same  way  that  their  pecu- 
liar local  government  is  subordinate  to  their  power,  and 
dependent  upon  their  will.  One  of  the  trusts  confided  to  it, 
is  that  of  providing  for  the  military  defence  of  the  State ; 
and,  in  order  to  enable  it  to  perform  that  trust,  it  is  put  in 
possession  of  certain  small  portions  of  the  territory  of  the 
State,  which  are  the  sites  of  forts  and  other  military  estab- 
lishments. These  places  are  held  by  the  Federal  Govern- 
ment, not  for  its  own  benefit,  but  for  that  of  the  State. 
They  are,  in  fact,  public  property  entrusted  to  an  agent  of 
the  State  for  the  use  of  the  State ;  and,  when  the  agency  is 
abolished,  they  revert  to  the  State  in  the  same  manner, 
and  for  the  same  reason  that  public  property,  in  the  pos- 
session of  the  State  Government,  would  revert  to  the  State 
if  that  government  were  abolished.  If  they  had  ever  been 
private  property,  and  had  been  purchased  for  a  price  to- 
wards which  other  States  had  contributed,  that  might  give 
them  an  equitalde  claim  to  be  reimbursed,  which  would  be 
a  proper  sul)ject  of  negotiation  and  mutual  adjustment; 
but  it  could  not  impair  the  supremacy  of  the  State  over 
every  part  of  her  territory,  nor  constitute  a  right  in  other 
States  to  hold  any  portion  of  it  for  pul)lic  uses  of  their  own 
against  her  consent.  But,  in  this  aspect  of  the  (question, 
there  is  a  remarkable  peculiarity  connected  with  the  site  of 
the  only  fort'  in  the  State  which  is  held  by  persons  profes- 
sing to  act  under  the  authority  of  the  government  of  the 
United  States.  It  never  was  the  subject  of  private  prop- 
erty, nor  was  it  purchased  by  the  Federal  Government, 
understanding  that  word  in  ite  ordinarj^  sense,  and  that  in 
which  it  is  used  in  the  Constitution.  It  was  part  of  au 
open  bay  or  inlet  of  the  sea,  and,  though  shoal,  it  was 
alwavs  covered  with  water,  even   in  the  lowest  state  of  the 


14 

tide.  It  appertained  to  tlie  public  «l(»niain,  and  if  the  gov- 
ernment of  the  State,  charged  with  tlie  general  care  and 
control  of  the  public  domain,  itennitted  it  to  be  used  by 
the  Federal  Government — another  public  agent,  entrusted 
with  the  military  defence  of  the  State,  for  the  construction 
of  a  fort — it  is,  nevertheless,  still  a  part  of  the  public 
domain,  and  all  the  rights  and  jiowcrs  of  the  Federal  Gov- 
ernment within  the  State  having  been  revoked,  it  cannot 
be  regarded  as  belonging  in  any  sense  to  that  government. 

The  }iower  "to  make  all  laws  which  shall  be  necessaiy 
and  propter  for  carrying  into  execution  the  foregoing  pow- 
ers," has  necessarily  been  considered  in  connection  with 
the  foregoing  powers  themselves ;  but  there  remains  to  be 
considered  that  portion  of  this  clause  which  embraces  "all 
other  powers  vested  by  this  (Constitution  in  the  government 
of  the  United  States,  or  in  any  dei)artniont  or  officer 
thereof." 

The  first  section  of  the  fourth  article  of  the  Constitution 
declares,  that  "Full  faith  and  credit  shall  be  given  in  <'ach 
State  to  the  public  acts,  records  and  judicial  proceedings  of 
every  other  State.  And  the  Congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records  and  pro- 
ceedings shall  be  proved,  and  the  elVeet  thereof." 

By  this  clause  of  the  Constitution,  each  State  bound 
itself  to  the  others,  "  to  give  full  faith  and  credit  to  their 
public  acts,  records  and  judicial  proceedings."  The  Con- 
stitution itself  and  all  the  obligations  it  involves,  including 
this,  being  renounced  by  the  secession  of  a  State  from  the 
Union,  it  would  seem  that  the  Acts  of  Congress,  "i»re- 
scribing  the  manner  in  which  the  public  acts,  records  and 
judicial  proceedings  of  the  other  States  shall  be  proved, 
and  the  eftect  thereof,"  which  are  merely  regulations  as  to 
the  form  in  which  the  obligation  shall  be  carried  into  ettect, 
must  be  abrogated  with  the  obligation  itself.  The  public 
acts  and  records  of  the  United  States,  and  the  judicial  juo- 
ceedings  of  tlie  Federal  Courts  during  the  existence  of  the 
Union,  being  the  acts  of  a  government  in  which  this  State 
participated,  are,  in  effect,  the  acts  of  the  State,  and  are 


15 

entitled  to  tlic  same  respect  as  if  the  Union  liad  not  been 
dissolved. 

The  second  and  third  clauses  of  the  second  section  of 
the  same  article,  are  those  which  relate  to  fugitives  from 
justice  and  fugitive  slaves.     They  are  as  follows  : 

"  A  person  charged  in  any  State  with  treason,  felony  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in 
another  State,  shall,  on  demand  of  the  Kxccutivc  authority 
of  the  State  from  which  he  fled,  be  delivered  up  to  be 
removed  to  the  State  having  jurisdiction  of  the  crime." 

"  No  person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  l)e  delivered  up,  on 
claim  of  the  party  to  whom  such  service  or  lal)or  may  be 
due." 

It  has  been  contended  that  these  clauses  are  mere  stipu- 
lations on  the  part  of  the  States  with  each  other,  depend- 
ing for  their  observance  upon  the  mutual  good  faith  of  the 
parties,  and  to  be  enforced  against  recusants  in  the  same 
manner  as  in  other  cases  of  contract  between  sovereign 
States.  But  it  appears  to  have  been  the  pervading  design 
of  the  Constitution,  to  establish  a  government  common  to 
all  tlie  States,  by  which  the  objects  of  the  confederation 
might  be  carried  into  effect,  avoiding  and  removing,  as  far 
as  possible,  all  occasions  of  discord  and  dispute  between 
States.  The  surrender  of  fugitives  from  justice,  and  the 
restoration  of  fugitive  slaves,  were  certainly  two  of  the 
object^expressly  provided  for  by  the  Constitution,  and  it  is 
a  reasonal)Ie  conclusion  that  they,  like  the  rest,  were  to  be 
effected  through  the  agency  of  the  common  government, 
rather  than  left  to  the  caprice  and  partiality  of  the  separate 
States;  more  especially,  when  it  is  considered  that  the 
States  are  i»recluded  from  making  war,  or  using  any  other 
effectual  means  of  coercing  each  other  to  the  fulfilment  o{ 
their  mutual  engagements.  The  language  is  tho  same  in 
both  cases:  "shall  be  delivered  up,  witliout  dcnignating 
expressly  by  whom  it  is  to  be  done.     Congress  have  Icgis- 


16 

lated  on  botli  these  sulijccts,  thereby  a-ssumin^  tliat  they 
were  authorized  to  deal  with  them. 

With  respect  to  fiiiritivea  from  justice,  it  is  made  tlie 
duty  of  the  Executive  of  the  State  to  whidi  they  may  liavc 
fled,  to  cause  them  to  be  arrested  and  delivered  up,  on 
demand  made  by  the  Executive  of  the  State  in  which  the 
offence  is  charged  to  have  been  committed:  while  it  is 
made  the  duty  of  certain  functionaries  of  the  Federal  Gov- 
ernment to  deliver  up  fuijitive  slaves.  The  reason  of  this 
dilt'erence  is,  probably,  to  be  found  in  the  fact,  that  there 
may  l)e  lugitives  from  the  eriminal  justice  of  all  the  States, 
and  therefore,  they  are  all  equally  interested  in  the  enforce- 
ment of  the  constituti(»nal  provision  as  to  them ;  but  there 
can  be  no  fu<j:itive  slaves  from  States  in  which  there  are 
no  slaves,  and  they  have,  therefore,  no  interest  in  the  ob- 
servance of  the  obligation  to  deliver  up  such  fugitives. 
But  it  is  obvious  that  if  Congress  may,  constitutionally, 
enact  laws  re(piiring  the  Executives  of  the  States  to  deliver 
up  fugitives  from  justice,  they  may  a  fortiori  require  their 
own  functionaries  to  do  the  same  thing. 

For  the  purpose  for  which  we  arc  considering  the  ques- 
tion, it  is  of  no  practical  importance  whether  the  Constitu- 
tion intended  that  fugitives  of  either  description  should  be 
delivered  up  by  the  authorities  of  the  several  States,  or  by 
those  of  the  United  StiUes.  Regarded  as  an  obligation  to 
be  fulfilled  by  the  States  themselves,  it  must,  as  to  a  seced- 
ing State,  together  with  ail  the  other  obligations  of  the 
Constitution,  be  extinguished  by  the  act  of  secession  ;  and 
if  it  be  regarded  as  cue  of  the  powers  of  the  Fedeftil  Gov- 
ernment, it  expires,  of  course,  with  the  Government  itself. 
In  either  view,  the  laws  intended  to  curry  it  into  effect, 
being  merely  ancillary,  cannot  survive  the  obligation  or 
power  of  which  they  are  accessories. 

The  Constitution  declares  that  "all  treaties  made  under 
the  authority  of  the  I'nited  States,  shall  be  the  supreme 
law  of  the  land;"  and  the  (piestion  is  presented,  how  are 
treaties  made  under  the  authority  of  the  United  States, 
while  this  State  was  iu  the  Union,  affected  by  its  dissolu- 
tion ? 


17 

"While  Foutli  CaiciliiKi  was  a  iiieinhcr  of  tlie  (\)iit((loracv 
tbe  ProHideiit  of  the  United  .States,  actiiiu^  l>y  and  witli  the 
fdvice  and  eoiiseiit  of  two-thirds  of  the  Senate,  was  tlic 
cr^aii  and  agent  of  the  State  for  making  treaties  with  for- 
eign nations.  Treaties  so  made,  in  tlie  name  of  the  United 
States,  were  treaties  made  ])y  and  for  eacli  of  the  States,  as 
well  as  all  the  States,  and  each  State  was  just  as  much 
bound  hy  tliem,  and  entitled  to  their  benefits,  as  if  they  had 
been  made  exclusively  in  behalf  of  tlie  State,  and  by  a 
government  or  agent  exclusively  its  own.  Treaties  bind, 
not  governments  merely,  but  the  States  of  which  they  arc 
the  organs  ;  and  a  State  does  not,  by  changing  its  govern- 
ment, divest  itself  of  the  obligations  which  it  has  con- 
tracted l)y  treaty  witli  other  States,  nor  forfeit  tlie  obliga- 
tions which  tliey  liave  assumed  towards  it.  It  follows,  that 
treaties  between  the  United  States  and  foreign  nations, 
made  during  the  existence  of  the  Union,  are  still  subsisting 
treaties  between  tliis  State  and  those  nations,  notwithstand- 
ing the  Government  of  the  United  States  has  ceased  to  be 
a  Government  of  tlie  State. 

The  Committee  are  conscious  tliat  tliey  have  performed 
their  task  very  imperfectly,  and,  in  a  manner,  signally 
unequal  to  the  extent  and  importance  of  the  subject^;  but 
they  venture  to  hope  that  what  they  Ijave  done  will  at  least 
serve  to  furnish  some  hints,  upon  which  others  may  here- 
after improve. 

A.  MAZYCK,   Clmrman. 


I* 


